CYIL Vol. 7, 2016

KATARÍNA CHOVANCOVÁ CYIL 7 ȍ2016Ȏ On the author: Assoc. Prof. JUDr. Katarína Chovancová, Ph.D., LL.M., MCIArb, Institute of International and European Law, Faculty of Law, Pan European University Bratislava. Katarína Chovancová is the 1998 graduate from the Faculty of Law of the Comenius University in Bratislava, Slovakia and the 2011 graduate from the University of London /PG LLM in IDR with merit/, where she currently continues with her studies in international business law. She works as an associate professor at the Faculty of Law of the Pan European University, where she lectures on the subject of international commercial and investment arbitration, as well as international economic law. She is the member of the CIArb /UK/, the Czech Society of International Law, the CILS Congress of Fellows /Austria/ and the Slovak Society of International Law. Assoc. Prof. Chovancová has already published several monographs, as well as numerous studies on the international commercial and investment arbitration in Slovakia, the Czech Republic, Hungary, the USA and the Netherlands. 1. Introduction and Basic Characteristics In a meticulously perfect world, designed only for exquisitely polished relationships between flourishing foreign investors and their generous host states, it might seem unnatural to start an opening statement in an essay confined to non-precluded measures 1 /“NPM”/ provisions in foreign investment law with a hint of caustic irony. Nonetheless, reality speaks through available case law with such eloquence that it might play the part of the Shakespearean consummate actor with her own sort of ironical snigger, easily detectable behind a stage of international investment arbitration. The underlying philosophy is that, had it not been for an onslaught of claims brought by foreign investors against Argentina 2 due to its economic crisis over the past two decades (which somehow still has no end), 3 it is highly likely that nowadays quite a vivid revival of NPM clause invocation in international investment arbitration would have dwarfed it instead, with an increase of voracious interest in international arbitration theory being less steep and less perilous for overzealous investors. 4 1 These measures are sometimes addressed simply as “exceptional measures” or “exception clauses,” or “derogation clauses.” See MARTIN, A.: Investment Disputes after Argentina’s Economic Crisis: Interpreting BIT Non-precluded Measures and the Doctrine of Necessity under Customary International Law, Journal of International Arbitration , 2012, Vol. 29, No. 1, pp. 49-70. 2 KASENETZ, E.D.: Desperate Times Call for Desperate Measures: The Aftermath of Argentina’s State of Necessity and the Current Fight in the ICSID, George Washington International Law Revue , 2009–2010, Vol. 41, pp. 79-747. 3 See e.g. CHOVANCOVÁ, K.: Reštrukturalizácia štátneho dlhu v kontexte medzinárodnej investičnej arbitráže /2. časť/, Justičná revue , 2016, Vol. 68, č. 3, s. 293-304. 4 See a radical proposal to erase a compensation obligation in PAPARINSKINS, M.: Investment Treaty Arbitration and the (New) Law of State Responsibility, European Journal of International Law , 2013, Vol. 24, No. 2, pp. 617-647.

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